Doctrine of Pith and Substance: A Study: Dr. Saheb Chowdhury

DOCTRINE OF PITH AND SUBSTANCE: A STUDY
Submitted by: SAHARSH DUBEY
UID-SM0117044
3RD YEAR- 5TH SEMESTER
Faculty In-charge:
Dr. Saheb Chowdhury
NATIONAL LAW UNIVERSITYAND JUDICIAL ACADEMY, ASSAM

1. INTRODUCTION
The distribution of powers is an essential feature of federalism. The object for which a federal
state is formed involves a division of authority between the Central Government and separate
states. A Federal Constitution establishes the dual polity with the union at the center and the states
at a periphery, each endowed with sovereign powers to be exercised in the field assigned to them
respectively by the constitution. “The one is not subordinate to the other in its own field; the
authority of one is co-ordinate with that of other.” In fact, the basic principle of federation is that
the legislative, executive and financial authority is divided between the center and state not by any
law passed by the center but by constitution itself. The nature of distribution of power varies
according to the local and political background of each country.
Our Constitution makers followed the Canadian scheme opting for strong center. The
Government of India Act, 1935 introduced a scheme of three-fold distribution viz., Federal,
Provincial and Concurrent.
The present Constitution, based on the principle of federalism with a strong and indestructible
union, adopts the method followed by the Government of India Act, 1935 and has a scheme of
two-fold distribution of legislative powers- with respect to territory; and with respect to subject
matter. With respect to subject matter, The Constitution adopts a three-fold distribution of
legislative powers by placing them in any of the three lists, namely, Union List, State List and
Concurrent List.
The Indian Constitution, based on the principle of federalism, has a scheme of two-fold
distribution of legislative powers- with respect to territory; and with respect to subject matter.
The constitutional provisions are spread out over Articles 245-254. Article 245 talks about
distribution of legislative power between Union and State with respect to territory. In terms of
Article 246, The VIIth Schedule of the constitution contains 3 lists, The Union List, State List
and Concurrent list. However, in case of conflict between a central law and a state law on a
subject in concurrent list; the union law should prevail. Also, In India residuary powers belong
to the union government under article 248 and Entry 97 of Union list. This reflects the leaning
of the constitution makers towards a strong center. Though in normal times the distribution of
powers must be strictly maintained and neither the State nor the Centre can encroach upon the
sphere allotted to the other by the Constitution, yet in certain exceptional circumstances the
powers of the Union Parliament are extended over the subjects mentioned in the Slate List. For
example, in the national interests, 2 during a Proclamation of Emergency, with the consent of
the State, in case of failure of constitutional machinery in a State etc. Thus, from the scheme
of distribution of legislative powers between the Union and the States it is quite evident that
the framers have given more powers to the Union Parliament as against the States. Yet, the
states are not made subordinate units of the center. In normal times, they have been granted
enough autonomy to act as independent centers of authority.1
2. DOCTRINE OF PITH AND SUBSTANCE2
Many a times, a law passed by a legislature with respect to a matter, within its legislative
competence, encroaches upon another matter outside its competence. In such cases, question with
regard to constitutionality of law is to be determined by applying the doctrine of pith and substance.
The doctrine flows from the words ‘with respect to’ under Article 246.
Thus, within their respective spheres, the Union and the State legislature are made supreme and
they should not encroach into the sphere reserved to other. If a law passed by one encroaches upon
the field assigned to the other, the court will apply the doctrine of pith and substance to determine
whether the legislature concerned was competent to make it. If the pith and substance of law, i.e.,
the true object of the legislation or a statute, relates to a matter with the competence of Legislature
which enacted it, it should be held to intra vires even though it might incidentally trench on matters
not within the competence of Legislature. In order to ascertain the true character of the legislation
one must have regard to the enactment as a whole, to its object and to the scope and effect of its
provision.
The Privy Council applied this doctrine in Profulla Kumar v. bank of Khulna3. In this case the
validity of the Bengal Money Lenders’ Act, 1946 which limited the amount and the rate of interest
recoverable by a money lender on any loan was challenged on the ground that it was ultra vires of
the Bengal Legislature in so far as it related to ‘promissory notes’, a central subject. The Privy
Council held that the Bengal Money-Lenders Act was in Pith and substance a law in respect of
Money-Lending and Money-lenders a state subject and was valid even though it trenched
incidentally on “Promissory note”- a central subject.
In State of Bombay v. F.N. Balsara4, the Bombay, Prohibition Act, which prohibited sale and
possession of liquors in the state, was challenged on the ground that it incidentally encroached
upon import and export of liquors across custom frontier- a central subject. It was contended that
the prohibition, purchase, use, possession and sale of liquor will affect its import. The court held
that Act valid because the pith and substance of the Act fell under the State List and not under the
Union List even though the Act incidentally encroached upon the Union Powers of Legislation.
1
M.P. Jain, Indian Constitutional Law, 7th Ed. 2014, Lexis Nexis, Gurgaon.
2
H.M. Seervai, “Constitutional Law of India” 460 (4th ed., 2009).
3
Profulla Kumar v. bank of Khulna, AIR 1946 SC 375.
4
State of Bombay v. F.N. Balsara, AIR 1951 SC 318.

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DOCTRINE OF PITH AND SUBSTANCE: A STUDY

Submitted by: SAHARSH DUBEY

3RD YEAR- 5TH SEMESTER

Dr. Saheb Chowdhury

NATIONAL LAW UNIVERSITYAND JUDICIAL ACADEMY, ASSAM

2. DOCTRINE OF PITH AND SUBSTANCE2

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